Federal Judge Strikes Down Portions Of An Alabama Abortion Law

By:

Merrit Kennedy

A federal judge in Alabama has struck down portions of a state abortion law, saying they are unconstitutional. Under the law, unique to Alabama, a minor who didn't have parental consent for an abortion could have faced a legal proceeding involving her parents, the district attorney and a person representing the fetus.

Alabama law requires that a minor obtain parental consent before an abortion. Since 1987, the state has allowed for minors to obtain a court order to bypass that requirement. According to court documents, typically those hearings would involve only the judge, the minor and her lawyer.

That changed in 2014, when amendments dramatically expanded the number of people involved in the hearing to decide whether a minor should be allowed to obtain an abortion. It said the district attorney must be involved. If the minor's parents or guardians learn of the hearing, they can also be involved.

The 2014 amendments also allowed the court to appoint a legal representative for the interests of the fetus, and for that person to join in the proceedings. Also, "prosecutors could object to the pregnant girl's wishes" and call witnesses, according to The Associated Press.

Abortion rights advocates say expanding the number of people involved in the hearing was a violation of the minor's privacy.

U.S. Magistrate Judge Susan Walker of the U.S. District Court for the Middle District of Alabama said Friday that the presence of the minor's parents and the lack of anonymity rendered the judicial bypass option meaningless, and the 2014 amendments violated "her right to an anonymous judicial bypass hearing."

"Today's ruling is a victory for women, for young people, and for reproductive health in Alabama," Andrew Beck, a senior staff attorney with the ACLU's Reproductive Freedom Project, said in a statement. "By undermining their confidentiality, this law put teenagers participating in the judicial bypass process in real danger."

The ACLU filed the lawsuit on behalf of Reproductive Health Services, a clinic that performs abortions.

The defendants, including Alabama's attorney general, had argued that the additional people included in the hearings were valuable for providing "guidance and assistance" to the minor.

"The bypass court is hardly the appropriate setting for such counseling, in any event; it is neither a physician's office, nor a classroom, nor any other such place of instruction or guidance," the judge stated.

Citing a Supreme Court case on parental consent, the judge said: "The only proper purpose of the bypass proceeding ... is the adjudication of the minor's maturity and whether she is well informed to make the abortion decision on her own, or, failing that, where her best interests lie."

The ACLU had argued that allowing witnesses to be called "destroys any expectation the minor could have of maintaining her confidentiality during the bypass process – the district attorney or guardian ad litem for the fetus could subpoena the minor's teacher, her neighbor, her aunt, or her boyfriend to testify that the minor is immature and/or that an abortion is not in her best interest."

No other state "either mandates or permits" the involvement of parents, the district attorney, a legal representative for the fetus, or witnesses not called by the minor, for any reason, the judge says.

Seven states do not require parental consent at all for a minor seeking an abortion, according to the court order.

The ACLU offered this story of a 12-year-old who was raped and impregnated by a relative, which it sees as illustrative of the dangers of the law:

"Even though the initial trial court granted her an abortion without parental consent, the district attorney appealed the decision. The minor has since won the appeal to obtain an abortion but her ability to obtain an abortion was delayed by the involvement of the district attorney."

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